County: More study on island electricity

By Steve Estes

After more than two hours of debate Wednesday evening, the Monroe Board of County Commissioners decided that it had to have more study before it could entertain thoughts of changing land use policies associated with allowing electrical hook ups to residents on No Name Key.

Attorneys representing No Name Key property owners had offered a settlement agreement to the BOCC that basically said the groups would not sue the county for not allowing them to hook into electricity if the county would agree to begin proceedings to change the policy that prohibits the extension of public utilities into areas designated as part of the Coastal Barrier Resource System.

That offer was something the county could not legally accept, said County Attorney Bob Shillinger.

“It is my opinion that none of the terms proposed would allow us to forego additional litigation,” said Shillinger.

He said that the agreements could be construed as contract zoning, something illegal under Florida rules.

“If you want to look into changing the code policies, I would suggest that you direct staff to file an application to do that and follow all the normal procedures associated with changing language,” said Shillinger. “You shouldn’t go any further than directing staff to start the legislative process.”

The commission didn’t even go that far after two exhausting hours of debate between pro-power and anti-power contingents in the audience, and even between seated commissioners.

Newly seated District One Commissioner Danny Kolhage asked that staff enlist the help of current comprehensive plan consultant Keith and Schnarrs and find out what it would mean to other properties affected by the CBRS designation, what it might mean to properties currently designated as Tier One, and what the ramifications would be to future development should the commission take the step.

Even as he suggested that course of action, with agreement from the other four commissioners, Kolhage hinted that he was inclined to change the policy if supported by analysis because, “the events have overtaken us. The US Fish and Wildlife Service has washed their hands of the situation. Keys Energy moved forward with placing poles and lines even though they knew we had problems with their actions.”

Kolhage said he was not in favor of an outcome where “More than half a million dollars was spent by whomever only to have the poles removed, and to have energized lines in place that can’t be connected to.”

The battle to electrify No Name Key has raged in and out of court for more than 20 years. There are currently three distinct legal battles, with some private side shows, the county is involved in regarding the electrification of the remote island off the north east shore of Big Pine Key and that has never before had commercial electricity available.

The county filed a declaratory action to see what its rights and authorities were in regard to managing electrification of the island in the local circuit court. The court dismissed the case, ruling that it had no jurisdiction and that such jurisdiction resides only with the state Public Service Commission.

That moved the case to the PSC where it still languishes with no resolution. It also moved the case to the 3rd District Court of Appeals when property owners of the island and the county appealed the decision.

Oral arguments on that appeal are scheduled for January 14, prior to the next BOCC meeting, and since there are no guarantees the planning staff can complete the requested research in a month, that court may well issue a ruling before the February meeting.

“A ruling could take as little as three to four weeks, or it could take a lot longer,” said Shillinger.

The county also stands ready to defend what is anticipated to be an appeal of its decision not to issue an electrical building permit to No Name Key homeowners based on the prohibition in the land development regulations against extending utilities to or through CBRS areas.

The county has also filed a trespass charge against Keys Energy because the utility ran power lines across county conservation lands without an approved easement.

Land Authority Director Mark Rousch had told commissioners about two years ago that state statute doesn’t allow easements across lands purchased the way those lots were.

The settlement agreement tendered by the property owners also did not promise to stop the ongoing litigation, merely to stay the litigation to see if the eventual outcome went in their favor.

“We change our policies to allow what they want and in return we get a promise not to sue us. Some of the terms in this agreement were downright laughable,” said Commissioner Sylvia Murphy.

Murphy also said that the issue of equal protection for residents of No Name Key, the basis on which the property owners said they intended to sue, has already been litigated and won by the county, “So the return for us is little.”

Commissioner Heather Carruthers said that because the legal staff had given the commission reasons it couldn’t accept the agreement, “I feel it’s premature to do anything at this point with the hearings hanging out there and the unanswered questions of the consequences of our actions.”

Proponents of power trekked to the microphone Wednesday to urge the commission to settle the suits and just simply allow them to have permits to hook into the power wires that now traverse the islands.

Opponents of commercial power urged the county to stay the course and let the legal issues play out before agreeing to change something they might not have to change.

No Name Key resident Jim Newton, who was issued a permit to tie to the grid and then saw that permit revoked, said that the county could at least start the process to look at changing the code so that “healing can begin on the island.”

Newton said that the beauty of No Name Key has become overshadowed by the “septic side” of the electrification arguments.

Hallett Douville, a long-time resident of the island, said that he was totally opposed to the approval of the settlement.

“I believe the courts should be allowed to weigh in. Just because Keys Energy jumped the gun, put in a power grid, and now the pro-power side is unsure of the outcome, that’s no reason to settle what might well be a winnable case,” said Douville.

Growth Management Director Christine Hurley said that her department’s hands were tied by the prohibition language in the LDRs because an earlier policy gave her staff the latitude to analyze each request for development in a CBRS on a separate basis to see if the approval would affect public health, safety and welfare.

The county is running into another CBRS issue with utilities in North Key Largo where the Key Largo Wastewater Treatment District made the decision to expand its central collection system to areas on Card Sound Road in a CBRS area and the county had to announce that it wouldn’t be able to issue permits to hook into the system.

The commission did not direct Shillinger to attempt to negotiate a settlement offer that both sides could live with, but did give him the latitude to explore the possibility.